I'm POA for my 93 year old father. I have one sibling, my mom passed away years ago. My father has some income and assets and a house. I know when he passes away the POA is no longer valid.

In his will everything is left to me and my brother, 50/50. How long can I expect it to take for the estate to be settled? My concern is getting money to maintain his house (utility and taxes) until the house is sold. I think there are county agencies that I think would answer these question, but I don't know which one to talk to.

I'm also thinking as the time gets near that I should remove money from his account to mine to make sure there is sufficient funds to keep the house going until everything is settled.

14 Answers

Flumavao, a Trust can avoid the necessity for Probate proceedings IF all the assets of the estate are transferred to the trust. This is called "funding the trust".

E.g., if Sandy's father's house is titled in his name only (let's say John Jones), he would execute a deed from him as sole owner to John Jones, as Settlor of the John Jones Revocable Trust dated ........

Other assets, such as the liquid (stocks, mutuals) assets, would also be retitled in the name of the Trust.

It's been my experience that in Michigan, vehicles cannot be titled in the name of the Trust, nor will insurance companies insure them if titled in a trust name.

I had to go through a lot of red tape to get my sister's vehicles transferred and ended up having to transfer titles to myself because the Michigan Secretary of State refused to retitle them in a Trust, and neither my sister's or my insurance company would insure a Trust as the owner of a vehicle.

However, if he's not capable of executing a Trust or the documentation necessary to fund it, that's an issue that's beyond my knowledge and I wouldn't want to speculate if it could be done by Sandy and her brother under their DPOAs. That's definitely an issue for an attorney.

A Will would still be executed, with a "pour-over" clause pouring over provisions for disposition of the assets into the trust.

In my experience, the only forms I filed were those with the IRS and the Michigan Treasury Department. No one monitored how fast I made disposition of the assets, I didn't have to file an inventory with the Probate Court. In fact, I never dealt with the Probate Court at all.

Sandy, the Probate Court provides oversight and monitoring of the distribution of assets in your father's estate. It requires filing various pleadings within certain time frames to ensure that you and your brother as Co-Personal Representatives properly manage the Cstate, pay the bills and make distributions to the heirs.

Assuming that you and your brother are the sole heirs, the process will be less complicated than if there were multiple heirs.

This is a good description of the probate process: website- nolo/legal-encyclopedia/how-probate-process-works-information-32438.html.

If the link is deleted (I've read somewhere that links aren't allowed here), Google "Nolo, Probate Proceedings". Nolo publishes a variety of legal information which I've used in the past and found helpful. It's less obtuse than some of the more descriptive legal lawsite explanations.

You would have to establish a joint checking account with your brother, and assuming that you both have equal rights and can perform without the consent of the other, either of you could pay the bills. Actually one or both of you would have to pay the bills because the Probate Court will be overseeing your activities to ensure that the terms of the Will are properly met and executed.

Unless there are unforseen complications, the funds could be available as soon as you set up the checking account.

The instructions for probating an estate can seem overwhelming, but read them through a few sections at a time to allow yourself to absorb them. Given my choices, I'd rather handle a Trust than Probate proceeding...any time, any day!

The avoidance of all the rigamarole and court oversight is one of the reasons revocable trusts have become so popular in the last few decades. Under a trust, you and your brother as Co-Trustees would still manage your father's assets and make disbursements as required (including for the utility bills, etc.) but you wouldn't be pressured by the Probate Court to comply with their time frame. Nor would you have to file inventories and other paperwork.

Trusts are not without complications though. You would have to file a form 1041 return with the IRS listing any income from assets such as mutuals or stocks, as well as distributions to yourselves as heirs (reflected in a Schedule K-1). A 1041 is similar in many ways to a 1040, but the allowable deducations are different.

I spent many hours reading IRS publications to ensure compliance with the 1041 requirements, but also decided to hire a trust accountant to prepare the first return to ensure it was done properly, then I prepared the next several years' returns myself. In 2004, the accountant's fee was only about $200.

Any income you pay yourselves would be reflected in your own tax returns. But you would be entitled to receive payment for trust administration. The questions would be whether there are sufficient assets to maintain the house and pay you both, and/or what the real purpose would be given that you're (apparently) going to be the sole heirs.

Back to Probate: Assuming that you sell the house and split the liquid assets between yourselves, the longest thing that could drag out the proceedings would be the sale of the house.

I checked the will. My brother and I are the executors. And I need to make contacting the probate court a priority. It's alot to deal with, as I'm sure you all know.

I did something I hope I won't regret. My father's house needed a new roof. I went to Home Depot and am using their home improvement loan to finance the roof project. They would not accept my POA and my father is really not capable of answering their questions to qualify for a loan, so I ended up having the loan in my name. It will obviously be paid for thru my father's account that I'm a POA for but if anything should happen to where medicaid become involved, hopefully they will see with the paperwork and paper trail that it was truly my father's roof that was replaced.

Sandy, a Personal Representative(s) should be named in the Will. That's who will be responsible for managing the Estate, paying the bills, disposing of all the property, etc.

Are either you or your brother named? This is something you'll want to check ASAP. If the Will was drafted by a competent attorney, someone will be named as either Executor, Executrix or PR, depending on when the Will was drafted.

If you can't find the Will, check the DPOA to see who witnessed your father's signature. Typically it's the drafting attorney and someone from his/her staff. The DPOA may also have been done on pleading rather than will paper (with standard blue backing paper) and have the name of the law firm on the left hand side, printed lengthwise down the side of the paper.

When your father passes, that person will take over everything. Unless you and/or your brother are named, and/or serve as joint PRs, it won't be your responsiblity to worry about the house or paying the bills.

I think you are wise, though, to be concerned about those issues.

The length of the Probate process depends on the extent and character of the assets, and what's necessary to dispose of them.

In Michigan, there are certain timelines by which certain things have to be done, but I don't know about Probate in any other states.

It wouldn't hurt to contact the Probate Court in the county in which your father resides to see if they publish brochures on probate of an estate, what's necessary, deadlines, etc. Some do.

But finding out who handles the estate after death is your first priority.

Unless an account is jointly owned, the executor can ask the bank to create an account the estate of ___ from which the executor can pay bills on the house. Who does the will name as the executor? Do not move any money into your own account. It is not legal and it probably will create some division between you and your brother which I'm sure you don't want to take place.

When he dies, the Executor takes over. The Executor is the one who pays the bills on the house. The POA is no longer effective after death. I know your intent, but the law will call it misappropriation of funds. Don't do it.

Moving money from his account to yours could land you in jail. Don't do it. A POA must never use their authority for self benefit. Your POA also stops when he dies. At that point the Executor of the Will takes over.

All the info you need is available online with a simple search. You might go ahead and find an attorney; you do need one to probate the will (at least in the State of Texas). You should get at least 10 copies of the death certificate; a copy will be needed for each entity you contact regarding his death, to change name on account or close accounts. The funeral home normally provides you with a list of things to be done and orders death certificates..

I am not an AARP fan but they do have a decent article on what needs to be done - http://www.aarp.org/home-family/friends-family/info-06-2012/when-loved-one-dies-checklist.4.html

We received funds from insurance policies within 2 weeks of completing their forms; however, the probate process can be as lengthy as you want but can easily be done within 90 days.

Best of luck. I think it is all these little details that keep us sane during those first few months after a death. Puts a little buffer around our heart and brain.

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